STATE OF NEW JERSEY VS. JOHN JACOBUS (18-11-0836, CAPE MAY COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1069-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,
APPROVED FOR PUBLICATION

v. August 11, 2021
APPELLATE DIVISION
JOHN JACOBUS, a/k/a
JONATHAN W. JACOBUS,
and JOHN W. JACOBS,

Defendant-Appellant.
________________________

Submitted March 24, 2021 – Decided August 11, 2021

Before Judges Ostrer, Vernoia, and Enright.

On appeal from the Superior Court of New Jersey,
Law Division, Cape May County, Indictment No.
18-11-0836.

Joseph E. Krakora, Public Defender, attorney for
appellant (Zachary G. Markarian, Assistant Deputy
Public Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for
respondent (Jennifer E. Kmieciak, Deputy Attorney
General, of counsel and on the brief).

The opinion of the court was delivered by

VERNOIA, J.A.D.
 A 2014 amendment to N.J.S.A. 2C:43-6.4(d) increased the penalties for

a conviction for violating the conditions of community supervision for life

(CSL) by changing the offense from a fourth-degree crime to a third-degree

crime and by imposing a presumption of imprisonment on those convicted of

the offense. See L. 2013, c. 214, § 4. In 2018, our Supreme Court determined

the 2014 amendment constituted an unconstitutional ex post facto law as

applied to individuals who were convicted and sentenced to CSL for predicate

offenses prior to the amendment but who committed violations of CSL

following the amendment. State v. Hester, 233 N.J. 381, 385-86 (2018). This

case requires that we determine whether the savings statute, N.J.S.A. 1:1-15,

permits the prosecution of defendant John Jacobus, who was sentenced to CSL

in 2002 and violated the conditions of CSL following the 2014 amendment, for

the fourth-degree offense extant under N.J.S.A. 2C:43-6.4(d) prior to the

amendment. We hold defendant was properly prosecuted for the fourth-degree

offense.

I.

Following defendant's 2002 conviction of the predicate offense of

endangering the welfare of a child, the court's sentence included N.J .S.A.

2C:43-6.4(a)'s then-requirement that defendant comply with the conditions of

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CSL.1 At the time, N.J.S.A. 2C:43-6.4(d) provided that a person who violated

a condition of CSL "without good cause is guilty of a crime of the fourth

degree." N.J.S.A. 2C:43-6.4(d) (2002); L. 1994, c. 130, § 2.

In amendments to N.J.S.A. 2C:43-6.4 that became effective on July 1,

2014, the Legislature "increased a CSL violation to a third-degree crime,"

provided for a presumption of incarceration upon conviction of the offense,

and required the conversion of a defendant's CSL to parole supervision for life

(PSL) following a conviction for violating the conditions of CSL. Hester, 233

N.J. at 385; see also Brown, 245 N.J. at 93 (explaining the 2014 amendments

to N.J.S.A. 2C:43-6.4(a) and (d)); L. 2013, c. 214, § 4. The change in the

crime's degree increased the prison sentence that could be imposed for a

conviction for violating the conditions of CSL. See N.J.S.A. 2C:43-6(a)(3) to

(4) (providing a court may impose a three- to five-year sentence of

imprisonment for a third-degree offense and a term of imprisonment not to

1
"In 2003, the Legislature replaced CSL with parole supervision for life . . . ,
a more restrictive post-release regime." State v. Brown, 245 N.J. 78, 92 (2021)
(citing L. 2003, c. 267). We note the record on appeal does not identify the
endangering-the-welfare-of-a-child offense for which defendant was convicted
and sentenced to CSL in 2002. See generally N.J.S.A. 2C:24-4 (defining
endangering the welfare of a child criminal offenses). As it existed in 2002,
however, N.J.S.A. 2C:43-6.4(a) authorized imposition of a sentence requiring
compliance with CSL for only one endangering-the-welfare-of-a-child offense:
"engaging in sexual conduct which would impair or debauch the morals of [a]
child" in violation of N.J.S.A. 2C:24-4(a). N.J.S.A. 2C:43-6.4(a) (2002); L.
1994, c. 130, § 2.

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exceed eighteen months for a fourth-degree offense). The added requirement

that a person convicted of violating the conditions of CSL must have his or her

CSL sentence converted to a PSL sentence further increased the penal

consequences for a CSL violation. See State v. Perez, 220 N.J. 423, 441-42

(2015) (explaining the more onerous penal consequences of a PSL sentence as

compared to a CSL sentence).

In Hester, the Court considered the constitutionality of the retroactive

application of the 2014 amendment increasing the degree of the offense to four

defendants who were sentenced to CSL prior to the amendment, but who

violated the conditions of CSL following the amendment. 233 N.J. at 384 -85.

Charged with the third-degree offense established by the 2014 amendment, the

defendants moved to dismiss, claiming the amendment unconstitutionally

increased the penalties for violating the CSL sentences imposed at the time of

their respective predicate convictions. Id. at 391.

The Court affirmed the trial court's dismissal of the third-degree charges.

Id. at 386. The Court determined the 2014 amendment constituted an

unconstitutional ex post facto law as applied to the defendants because it

retroactively increased the sentences imposed for their predicate convictions.

Id. at 398; see also U.S. Const. art. 1, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.

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 The Court explained that "a law that retroactively 'imposes additional

punishment to an already completed crime' disadvantages a defendant, and

therefore is a prohibited ex post facto law." Hester, 233 N.J. at 392 (quoting

Riley v. N.J. State Parole Bd., 219 N.J. 270, 285 (2014)). The Court held the

2014 amendment's increased penalties "attach[] to a condition of [the]

defendants' sentences" for their predicate offenses, and that "the 'completed

crime[s]'" to which the increased punishment applies "necessarily relate[] back

to the predicate offense[s]." Id. at 392. The Court concluded "the 2014

[a]mendment materially altered [the] defendants' prior sentences [for their

predicate offenses] to their disadvantage," and unconstitutionally, retroactively

increased the punishment for their predicate convictions. 2 Id. at 398.

Months after the Court's decision in Hester, a grand jury charged

defendant in an indictment with violating the conditions of the CSL sentence

the court imposed for his 2002 predicate endangering-the-welfare-of-a-child

2
The Court in Hester affirmed the dismissal of the indictments charging the
defendants with the third-degree offenses under the 2014 amendment to
N.J.S.A. 2C:43-6.4(d). Id. at 386. The State did not argue in Hester that,
under the savings statute, N.J.S.A. 1:1-15, the fourth-degree offense that
existed under N.J.S.A. 2C:43-6.4(d) when the defendants were sentenced for
their predicate offenses survived the adoption of the 2014 amendment. The
Court therefore had no reason to address the issue.

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conviction. The indictment charged defendant with three separate third-degree

crimes under N.J.S.A. 2C:43-6.4(d) for violating the conditions of CSL. 3

Defendant moved to dismiss the indictment. Relying on the Court's

decision in Hester, he argued the 2014 amendment to N.J.S.A. 2C:43-6.4(d)

that increased the degree of the offense constituted an unconstitutional ex post

facto law as applied to him. Defendant further asserted that since N.J.S.A.

2C:43-6.4(d) provides only for a third-degree crime for violating the

conditions of CSL, and he cannot be prosecuted for that crime under Hester,

there is no offense in our criminal code for which he can be prosecuted for

violating the conditions of CSL.

The State acknowledged the Court's decision in Hester did not permit

defendant's prosecution for the third-degree offense established by the 2014

amendment to N.J.S.A. 2C:43-6.4(d). The State, however, claimed defendant

could be charged with the fourth-degree offense which was proscribed by

N.J.S.A. 2C:43-6.4(d) when defendant was sentenced in 2002 to CSL. Relying

on N.J.S.A. 1:1-15, the State argued the fourth-degree crime extant under

N.J.S.A. 2C:43-6.4(d) was unaffected by the 2014 amendments and therefore

could be properly charged against individuals, like defendant, whose CSL

3
The indictment charged defendant with violating CSL by possessing alcohol
(count one); refusing to provide a urine sample (count two); and failing to
report that he violated CSL (count three).

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sentences were imposed prior to the amendments and who violated the

conditions of CSL after the amendments. The court agreed. It denied

defendant's motion to dismiss the indictment and permitted the State to

proceed against defendant on the crimes charged in the indictment as fourth-

degree offenses. 4

Defendant later entered a conditional plea of guilty to a single, amended

count of fourth-degree violating CSL under N.J.S.A. 2C:43-6.4(d) (2002). He

reserved his right to challenge on appeal the court's denial of his motion to

dismiss the indictment. The court later imposed sentence. 5 This appeal

followed.

II.

Defendant asserts the court committed legal error by denying his motion

to dismiss the indictment. He contends that when he violated the conditions of

CSL in 2018, the criminal code provided only for the third-degree crime for

4
The record does not reflect that the State moved to amend the indictment to
charge fourth-degree offenses. In any event, the court's decision on
defendant's motion to dismiss the indictment, and the parties' actions following
the decision, reflect an understanding defendant would be prosecuted for
fourth-degree crimes under N.J.S.A. 2C:43-6.4(d).
5
Consistent with its application of the version of N.J.S.A. 2C:43-6.4 that
existed prior to the 2014 amendments, the court did not apply the presumption
of imprisonment or order the conversion of defendant's CSL to PSL in its
imposition of sentence on defendant's conviction of the fourth-degree offense.

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that offense under the 2014 amendment to N.J.S.A. 2C:43-6.4(d). He reasons

that he could not be properly charged with the proscribed third-degree offense

under the Court's decision in Hester, and the criminal code therefore lacks any

applicable criminal offense for which he can be charged for violating the

conditions of CSL. Defendant contends the court erred by finding the savings

statute, N.J.S.A. 1:1-15, permits his prosecution for the fourth-degree offense

proscribed by N.J.S.A. 2C:43-6.4(d) prior to the 2014 amendments.

Where a court's denial of a motion to dismiss an indictment "hinges on a

purely legal question," we review the court's determination de novo. State v.

Campione, 462 N.J. Super. 466, 492 (App. Div. 2020). The parties do not

dispute the Court's decision in Hester barred defendant's prosecution for the

third-degree offense established by the 2014 amendment to N.J.S.A. 2C:43-

6.4(d). The only issue presented for our review is whether the motion court

correctly determined that under N.J.S.A. 1:1-15, the fourth-degree offense for

violating the conditions of CSL survived the 2014 amendments and thereby

permits defendant's prosecution for the fourth-degree offense of violating the

conditions of his CSL sentence after the amendments' effective date.

In our "interpretation of a statute[,] our overriding goal" is "to determine

the Legislature's intent." In re Civ. Commitment of W.W., 245 N.J. 438, 448

(2021) (quoting Young v. Schering Corp., 141 N.J. 16, 25 (1995)). We "look

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to the statute's language and give those terms their plain and ordinary

meaning." Ibid. (quoting State v. J.V., 242 N.J. 432, 442 (2020)). "If the

language is clear, the court's job is complete." Id. at 449 (quoting In re

Expungement Application of D.J.B., 216 N.J. 433, 440 (2014)).

N.J.S.A. 1:1-15 provides:

No offense committed, and no liability, penalty or
forfeiture, either civil or criminal, incurred, previous
to the time of the repeal or alteration of any act or part
of any act, by the enactment of the Revised Statutes or
by any act heretofore or hereafter enacted, shall be
discharged, released or affected by the repeal or
alteration of the statute under which such offense,
liability, penalty or forfeiture was incurred, unless it is
expressly declared in the act by which such repeal or
alteration is effectuated, that an offense, liability,
penalty or forfeiture already committed or incurred
shall be thereby discharged, released or affected; and
indictments, prosecutions and actions for such
offenses, liabilities, penalties or forfeitures already
committed or incurred shall be commenced or
continued and be proceeded with in all respects as if
the act or part of an act had not been repealed or
altered, except that when the Revised Statutes, or
other act by which such repeal or alteration is
effectuated, shall relate to mere matters of practice or
mode of procedure, the proceedings had thereafter on
the indictment or in the prosecution for such offenses,
liabilities, penalties or forfeitures shall be in such
respects, as far as is practicable, in accordance with
the provisions of the Revised Statutes or such
subsequent act.

N.J.S.A. 1:1-15 is "applicable to the enactment and operation of" our

criminal code. N.J.S.A. 2C:98-1. It "codifies the general rule that a new law

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applies prospectively only, not affecting offenses and penalties incurred prior

to its enactment, unless the Legislature expresses a clear intent to the

contrary." State v. Bellamy, ___ N.J. Super. ___, ___ (App. Div. 2021) (slip

op. at 15).

The codification of the general rule is reflected in N.J.S.A. 1:1-15's plain

language stating that neither any "offense committed" nor any civil or criminal

"liability, penalty or forfeiture . . . incurred" prior to the "repeal or alteration"

of any statute "shall be discharged, released or affected by the repeal or

alteration of the statute under which such offense, liability, penalty or

forfeiture was incurred." 6 N.J.S.A. 1:1-15. Further, N.J.S.A. 1:1-15 makes an

express provision for the manner in which offenses committed and penalties

incurred that are subject to the general rule shall be treated: "[I]ndictments,

prosecutions and actions for such offenses, liabilities, penalties or forfeitures

already committed or incurred shall be commenced or continued and be

proceeded with in all respects as if the act . . . had not been repealed or

altered . . . ." Ibid. (emphasis added).

6
We recognize N.J.S.A. 1:1-15 includes an exception to the general rule
where the repealing or altering statute "expressly declare[s]" "that an offense,
liability, penalty or forfeiture already committed or incurred shall be thereby
discharged, released or affected." The exception is inapplicable here, and we
therefore do not address it, because the 2014 amendment to N.J.S.A. 2C:43-
6.4(d) does not include such an express declaration.

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 The statute includes a temporal component essential to its proper

application. It requires a determination whether an "offense committed" or

"liability, penalty or forfeiture . . . incurred" is "previous to the time of the

repeal or alteration of any act or part of any act . . . [that] discharge[s],

release[s] or affect[s] . . . [that] offense, liability, penalty or forfeiture." Ibid.

Where the offense is committed, or the liability, penalty or forfeiture is

incurred, prior to the repeal or alteration of a statute discharging, releasing or

affecting the offense, liability, penalty or forfeiture, the offense, liability,

penalty or forfeiture is not discharged, released or affected by the repeal or

alteration of the statute. Ibid.

The statute applies to both an "offense committed" and a "liability,

penalty or forfeiture, either civil or criminal, incurred." Ibid. There is,

however, a distinction between the two that is important to the temporal

determination essential to the statute's application. State in Interest of J.F.,

446 N.J. Super. 39, 57-58 (App. Div. 2016). "[W]e consider the 'date an

offense was committed in determining whether a new law, which discharges,

releases or affects an offense, should be applied to that offense . . . .'" Id. at 58

(quoting State in Interest of C.F., 444 N.J. Super. 179, 188 (App. Div. 2016)).

In contrast, we "look to the date a penalty was incurred to determine whether a

new law . . . discharge[s], release[s] or affect[s] the penalty for the offense."

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Ibid. (quoting C.F., 444 N.J. Super. at 189); see also State v. Chambers, 377

N.J. Super. 365, 374-75 (App. Div. 2005) (applying N.J.S.A. 1:1-15 to analysis

of an amendment to the driving under the influence statute reducing the length

of the mandatory license-suspension period because the defendant had incurred

the license-suspension penalty when sentenced prior to the effective date of the

amendment); cf. State v. Parks, 192 N.J. 483, 488 (2007) (finding analysis

under N.J.S.A. 1:1-15 inapplicable to an amendment to a statute affecting the

defendant's sentence because the defendant had not incurred his sentence prior

to the amendment).

Defendant argues N.J.S.A. 1:1-15 is inapplicable because the offenses

for which he was indicted occurred in 2018, four years after the 2014

amendment to N.J.S.A. 2C:43-6.4(d). He contends that since his offenses were

not "committed . . . previous to the time of the" 2014 amendment, he cannot be

properly prosecuted for the fourth-degree offense extant under N.J.S.A. 2C:43-

6.4(d) prior to the amendment. Stated differently, defendant argues

application of N.J.S.A. 1:1-15 did not save as to him the fourth-degree offense

following the 2014 amendment to N.J.S.A. 2C:43-6.4(d).

Defendant relies on State v. Epstein, 175 N.J. Super. 93, 95 (Resent.

Panel 1980), where, citing N.J.S.A. 1:1-15, the Resentencing Panel noted that

"[p]ersons violating a penal law prior to its amendment may be convicted

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under the old law, even after the effective date of the amendment." The

Resentencing Panel's decision in Epstein is consistent with the well-established

principle under N.J.S.A. 1:1-15 that a person who commits a crime in violation

of a statute prior to its amendment may only be prosecuted for, and convicted

of, the offense existing under the statute in effect when the crime was

committed. See State v. Low, 18 N.J. 179, 187-88 (1955) (finding that under

N.J.S.A. 1:1-15 the "repeal or alteration of any statute under which an offense

was charged does not bar indictment and prosecution for such offense, unless

expressly so declared in the act by which such repeal or alteration is

effected"); State v. Jones, 183 N.J. Super. 172, 177 n.4 (App. Div. 1982)

(noting that under N.J.S.A. 1:1-15 the defendant was properly charged with a

crime under Title 2A, which was in effect when the crime was committed,

even though the statute under which the offense was charged had been

repealed by the enactment of Title 2C); State v. Baechlor, 52 N.J. Super. 378,

395-96 (App. Div. 1958) (permitting prosecution for an offense under the

statute in effect when the crime was committed, and not a later amendment to

the statute). The principle reflects the general rule embodied in N.J.S.A. 1:1-

15's express language: "No offense committed . . . previous to the time of the

repeal or alteration of any" statute "shall be discharged, released or affected by

the repeal or alteration of the statute under which such offense . . . was

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incurred," and all prosecutions shall be made "in all respects as if the act or

part of an act had not been repealed or altered."

Defendant's argument ignores the distinction made in N.J.S.A. 1:1-15

between "offenses committed" and "liabilit[ies], penalt[ies] or forfeiture[s]

incurred." He argues N.J.S.A. 1:1-15 is inapplicable because his charged

offenses were not "committed" prior to the 2014 amendments, but N.J.S.A.

1:1-15 also applies where the amendment of a statute discharges, releases or

affects a liability, penalty or forfeiture incurred prior to the amendment. That

is the case here.

The 2014 amendment to N.J.S.A. 2C:43-6.4(d) did not modify the

elements of the offense of violating CSL. As the Court explained in Hester,

for defendants who were sentenced to CSL prior to the 2014 amendments and

violate conditions of CSL following the amendments, the enhanced

punishment provided by the amendments "materially alter[s]" the original

sentences to CSL. 233 N.J. at 398. The Court found "[t]he 2014

[a]mendment[s] to N.J.S.A. 2C:43-6.4 'enhance[] the punitive consequences of

the special sentence of CSL'" imposed for their predicate offenses. Ibid.

(quoting Perez, 220 N.J. at 442).

Applying the Court's reasoning and holding in Hester, the 2014

amendment to N.J.S.A. 2C:43-6.4(d) repealed and altered the penalty

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defendant incurred long prior to the amendment, when he was sentenced to

CSL in 2002. Indeed, it was because the amendments to N.J.S.A. 2C:43-6.4

retroactively increased the defendants' CSL sentences that the Court in Hester

found the amendment to N.J.S.A. 2C:43-6.4(d) constituted an unconstitutional

ex post facto law. Ibid.; see also Perez, 220 N.J. at 441-42 (explaining the

mandatory conversion of CSL to PSL required under the 2014 amendments to

N.J.S.A. 2C:43-6.4 for individuals convicted of violating CSL constituted a

retroactive enhancement of an offender's original sentence to CSL).

Because defendant "incurred" the penalty of his original CSL sentence

prior to the 2014 amendments, the temporal requirement for application of

N.J.S.A. 1:1-15 was satisfied. Under N.J.S.A. 1:1-15, that penalty, which

included defendant's exposure to prosecution for the fourth-degree offense of

violating the conditions of CSL, was neither "repealed or altered" nor

"discharged, released or affected" by the amendments, and, as to defendant, the

penalty he incurred prior to the amendments "continued . . . in all respects as

if" it "had not been repealed or altered" by the amendments. N.J.S.A. 1:1-15;

see also N.J.S.A. 2C:43-6.4(d) (2002).

The fourth-degree offense extant under N.J.S.A. 2C:43-6.4(d) prior to

the 2014 amendments that was in effect when defendant was sentenced to

CSL, continued in all respects as to defendant's post-amendment violations of

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CSL. The court therefore correctly determined defendant could be charged

with a fourth-degree offense under N.J.S.A. 2C:43-6.4(d) for violating the

conditions of CSL and properly denied defendant's motion to dismiss the

indictment.

Any arguments made by defendant that we have not expressly addressed

are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

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